Is posting a phony, sexually suggestive ad online about another person free speech, an inappropriate prank, or a felony? That's what the Missouri court system will decide.

A cyberbullying case in Saint Charles County, Missouri, will test a year-old state law on electronic harassment. The law makes it a felony for someone 21 years or older to communicate with someone 17 years or younger by phone or electronic means in order to recklessly frighten, intimidate, or cause emotional distress to that person.

Elizabeth Thrasher, 40, allegedly posted a photo and personal contact details of a teenage girl in the Casual Encounters section of Craigslist during the spring. The teen reportedly received phone calls, e-mails, and text messages from strange men, prompting her to call the police.

Thrasher was then charged with the crime of cyberbullying under the statute 565-090, passed in Missouri in August 2008. Unofficially known as Megan's law, the statute is named after 13-year-old Megan Meier who committed suicide in 2006 after being the victim of an Internet hoax set up by a schoolmate's mother.

In the new case, CNET News recently spoke by phone with defense attorney Michael Kielty and Saint Charles County prosecutor Jack Banas.

The defense speaks
Hired to defend Thrasher, Michael Kielty finds fault with the law itself, pegging it as too vague. "It's a terribly crafted statute," he told CNET News. "I think ultimately it's going to be found unconstitutionally overly broad and vague."

Kielty's problems with the law rest partly on free speech issues. He said the statute states that if you cause somebody under 17 emotional duress via electronic communication, then you're a felon. "Can you imagine the application of that in everyday life?" he asked. "With your children? With teachers and students? It is a slippery slope."

The attorney also believes the case targets Internet speech specifically and that it wouldn't be a felony had it not occurred in cyberspace. "She was arrested and had to post bond for words. No actions, no threats. For words. There's something wrong with that. If it was a newspaper ad, it would not have been criminal. It certainly wouldn't have been a felony. If it was on a street corner or a bathroom wall, it wouldn't have been a felony."

Kielty also discussed the complicated back-story between the defendant and alleged victim. One of the client's daughters was dating the alleged victim's younger brother, he said. That led to a meeting between the ex-husband of the defendant and the alleged victim's mother, who apparently hit it off and moved in together soon after.

Conflict then started to surface between various family members, according to Kielty. The alleged victim's mother started making derogatory comments about the defendant's daughter, he said. Kielty claims there was harassment by the alleged victim and and her mother directed at the defendant.

"This didn't just happen in an isolated incident," he said. "There is context to the transaction. But my client never initiated contact with the victim. Your typical harassment statute would be a series of threatening or harassing statements, maybe some stalking, maybe threats of abuse or something of that nature. This is nothing of the sort."

This isn't Kielty's first encounter with Megan's law. In December, he defended a 21-year-old woman accused of sending harassing and threatening text messages to a 17-year-old girl in a dispute over a male.

The 21-year-old was charged under the same statute, but in this case it was a misdemeanor, not a felony. Kielty said she pleaded guilty to the misdemeanor and received probation. "But she was never arrested, and she never had to post bond," he said. "And I would argue that case was more egregious than (the Thrasher case) because as the facts came out at the plea, there were actual threats made."

Kielty acknowledges that Thrasher's action was improper and a mistake. "It wasn't thought out and it was not the appropriate thing to do. However, I don't think it raises to the level of a felony, much less a misdemeanor."

Kielty sees the law as a knee-jerk reaction on the part of local politicians to the Megan Meier case. All the media attention and public outcry over Meier's suicide led to the new statute, he believes. And now the prosecutor is in a position to enforce that statute.

An arraignment is set for Monday, in which Kielty will enter a plea of not guilty on behalf of his client. He expects the case will be set for either a disposition or preliminary hearing. The hearing would require the state to show probable cause that a crime was committed and that Thrasher was the person who committed it.

After that, the case would then travel to the circuit court, requiring another arraignment where Kielty would again enter a plea of not guilty. The case would then be set for trial, which the attorney believes could happen mid- to late spring of 2010.

If convicted, Thrasher might receive a penalty of up to four years in prison. "Up to four years in prison for a practical joke gone awry," said Kielty. "For words spoken through an Internet medium that would not be criminal if spoken on the corner of the street. I'm going to fight them every step of the way because I don't think it's a properly crafted statute. I believe that ultimately the statute will be overturned and should be."

The prosecution speaks
Saint Charles County prosecutor Jack Banas is charged with enforcing Megan's law. As opposed to Kielty, he said he believes the statute will stand up in court. "I think it's drawn narrowly enough to punish people only when they've done something intentional for the purpose of intimidating or frightening or causing someone emotional distress. I can only say that as it's written right now, we're enforcing it and will enforce it."

Banas doesn't believe the law singles out the Internet specifically other than that it's the vehicle used to commit the crime. He pointed out that Missouri harassment statutes are not just for electronic communications. "They're written for any type of communications done to frighten or intimidate or cause emotional distress," he explained, "whether the purpose is to harass somebody through the Internet, over the phone, or face to face."

This isn't a free speech issue according to Banas, but pure harassment. "Free speech does not involve speech directed at someone to intimidate, frighten, or otherwise harass them," he said. "That's not what free speech is about. This is directing something at a specific individual for the purpose of intimidating or frightening or causing emotional harm. It takes it out of the realm of some type of public speech."

Megan's law was passed to update Missouri's prior harassment statute, which Banas said was archaic because it only covered intimidation by writing or by phone. A large committee of prosecutors, defense attorneys, and a victim in another case worked with legislators to upgrade the statute for the modern world to cover electronic communications.

Banas explained that much time and effort have been spent educating people about the new law and the issue of harassment. Local newspapers and news stations have done stories on cybercrimes and the problems they've created.

Megan Meier's mother has also focused on public awareness. "Mrs. Meier had organized a nonprofit agency in which she went to schools to make parents and everyone else aware of this," said Banas. "There are bullying and cyberbullying classes. My wife is a teacher, and that's part of their curriculum."

"Whether or not the law was common knowledge, I think it was common knowledge that what she did was wrong," said Banas. "You're presumed to know what the crimes are in the state of Missouri."

The attorney explained that it's in an appeals process where the statute's constitutionality would be tested.

"If it goes to trial, and there's a verdict of guilty, then the defendant would have a right to appeal it. But I think this statute is very much within the constitutional boundaries. I think it should withstand the scrutiny of the appellate court."

About the author

Journalist, software trainer, and Web developer Lance Whitney writes columns and reviews for CNET, Computer Shopper, Microsoft TechNet, and other technology sites. His first book, "Windows 8 Five Minutes at a Time," was published by Wiley & Sons in November 2012.
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